Australia’s Independent senator Jacqui Lambie demanded in the Senate on Tuesday the International Criminal Court (ICC) investigate some of Australia’s most senior defence figures over alleged war crimes in Afghanistan.
Senator Lambie called for Australia to address the “shocking lack of accountability at the top of our Defence Force”, claiming the “most responsible are the least accountable”.
But legal experts say there is little prospect of Australian Defence Force (ADF) members being put before the court, with an author of the letter conceding its intent is to force Australia to revisit command responsiblity.
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Jacqui Lambie says the spotlight should be on the ADF’s chain of command. Source: AAP / Mick Tsikas
The 2020
in Afghanistan found evidence of 39 murders committed by Australian special forces (SAS) soldiers, ruling senior commanders were morally, though not criminally, culpable for the alleged atrocities.
Using parliamentary privilege, Senator Lambie tried to table a letter to the ICC which asked the court to investigate up Australia’s chain of command.
“Higher command needs to be held responsible. Please allow me to table these documents,” Senator Lambie said to the Senate.
“The government is no doubt hoping this will just go away. They’re hoping that Australians will forget that when alleged war crimes in Afghanistan were investigated, our senior commanders got a free pass while our diggers were thrown under the bus.
“Well, we don’t forget. I won’t forget. Lest we forget.”
Australia is facing a reckoning over war crimes in Afghanistan. What about the US?
Military lawyer Glenn Kolomeitz, who helped draft the letter, said its end goal was to end Australia’s inertia on command responsibility.
“The Australian government is inactive in investigating the higher command. They haven’t investigated, they aren’t investigating,” he said.
Would the ICC actually intervene?
The letter, directed to the ICC’s lead prosecutor Karim Khan, asked him to look at the ADF’s higher-ups through “the lens of command responsibility”.
Under international law, commanders are criminally responsible for war crimes they knew about, or reasonably should have known about, but did not prevent.
Senator Lambie and Dr Kolomeitz mailed the document to the ICC on Tuesday afternoon.
“Australia has in fact set up two systems of criminality: one for Australia’s top military commanders, and another for commanders from the rest of the world,” Senator Lambie said.
“Quite frankly, I feel embarrassed that Australia is in this situation. “
The Brereton Report uncovered evidence of 39 murders committed by SAS troops, but exonerated senior officials.
The ICC only has jurisdiction when a country is unable or unwilling to investigate war crimes allegations itself.
And because an ongoing investigation by the Australian Federal Police and Office of the Special Investigator (OSI) has already started laying charges against former SAS soldiers, legal experts say the ICC is unlikely to pursue the lower rungs of the ADF.
Mr Khan caused controversy in 2021 by announcing the ICC’s investigation into atrocities by all sides in Afghanistan would now focus on the Taliban and IS-KP – the regional affiliate of the self-proclaimed Islamic State group – meaning investigations into alleged crimes by Western forces would be put aside.
“I made a decision, based upon the evidence, that the worst crimes in terms of gravity and scale and extent seem to be committed by [IS-KP] and also the Taliban,” he said.
The ICC is focusing on atrocities committed by the Taliban. Source: AP / Zabi Karimi
Ben Saul, chair of international law at the University of Sydney, said the ICC was also weighed down by investigations into war crimes being carried out in Ukraine.
“[That’s] very resource intensive to investigate, so these historic claims against Australia are probably not high on the radar of the ICC for the time being,” he said.
“The court has to work out where it can use its resources most effectively, and go after the most serious forms of international crime around the world.”
ANU international law expert Don Rothwell said the ICC had received roughly 12,000 invitations to investigate war crimes, and it was “most unlikely” it would launch its own probe.
Professor Rothwell told SBS News the “world is watching” Australia’s response to the Report, with the OSI currently investigating roughly 40 alleged war crimes.
“How those prosecutions roll out in coming years will be watched very closely by the international community to ensure that Australia is meeting its … obligations,” he said.
Defence Minister Richard Marles wants the Brereton Report’s recommendations implemented to ‘the fullest extent possible’. Source: AAP / Lukas Coch
The OSI is not limited to alleged crimes outlined in the Brereton Report, and can pursue ADF members of any rank over their responsibility for war crimes.
And Fiona Nelson, legal advocacy director at the Australian Centre for International Justice, believes the Brereton Report had been “quite weak” on the issue of command accountability.
“[It] really glossed over the fact that command responsibility is a legal doctrine. We could be potentially, depending on what is in the evidence, be looking at individual criminal responsibility of superiors when they should have known,” she said.
“[The] OSI will really need to make sure that it does look up the chain of command.”
Richard Marles says ‘we regard this very seriously’
Speaking on Tuesday afternoon, Defence Minister Richard Marles lauded Senator Lambie’s advocacy for veterans, which he said Labor held in “the highest regard”.
Mr Marles confirmed he will meet the independent MP tomorrow to discuss her concerns.
“We regard this very seriously. We will seek to implement the recommendations of the Brereton Report to the fullest possible extent,” he said.
“Under this government, Australia is holding itself to account.”
Mr Marles would not be drawn on the prospect of the ICC launching an investigation, but the Brereton Report had addressed command responsibility.
“I will be seeking the appropriate advice in order to act on [its] recommendations, which I will do in due course,” he said,.
Mr Marles said whether the ICC picked up the case was a matter for the court.
A Defence Department spokesperson said: “Australia is addressing and responding to the findings of the Afghanistan Inquiry in accordance with our own laws and justice system.”
